OPINION OF ADVOCATE GENERAL

delivered on 26 November 2002 (1)

((Appeal – Bananas – Imports from ACP States and third countries – Calculation of annual reference quantity allocated to operators – Quantity fixed by a national court in proceedings for interim relief – Inclusion – Conditions))

This appeal is directed against the judgment of the Court of First Instance of the European Communities in Case T-52/99 T. Port v Commission. (2) It follows on from the judgment of the Court of Justice in Joined Cases C-364/95 and C-365/95 T. Port. (3)

It will be remembered that in 1995 the Finanzgericht (Finance Court) Hamburg (Germany) had expressed doubts regarding the validity of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas. (4) Ruling in proceedings for interim relief, that court had provisionally disapplied Regulation No 404/93 and referred several questions to this Court for a preliminary ruling. By way of interim measures, it had also authorised T. Port GmbH & Co. KG to import a certain quantity of bananas into the European Community. The question which now arises is whether that quantity of bananas, which was fixed provisionally by the national court, can be taken into account in the calculation of the reference quantity allocated to traditional operators under Commission Regulation (EC) No 2362/98. (5)

I ─ Legal background

The legal background to the case can be described as follows. (6)

Regulation No 404/93 introduced common arrangements for the importation of bananas, which replaced the various national arrangements. A distinction was drawn between Community bananas produced in the Community, third-country bananas originating in third countries other than the African, Caribbean and Pacific (ACP) States, traditional ACP bananas and non-traditional ACP bananas. Traditional ACP bananas and non-traditional ACP bananas meant the quantities of bananas exported by the ACP States which did not exceed or did exceed, respectively, the quantities traditionally exported by each of those States as set out in the Annex to Regulation No 404/93.

Originally, Regulation No 404/93 provided for the opening of an annual tariff quota of 2.2 million tonnes (net weight) for imports of bananas from third countries and non-traditional ACP bananas.

Article 19(1) of Regulation No 404/93 divided the tariff quota as follows: 66.5% for the category of operators who had marketed third-country and/or non-traditional ACP bananas (category A), 30% for the category of operators who had marketed Community and/or traditional ACP bananas (category B) and 3.5% for the category of operators established in the Community who had started marketing bananas other than Community and/or traditional ACP bananas from 1992 (category C).

The first sentence of Article 19(2) of Regulation No 404/93 reads as follows: On the basis of separate calculations for each of the categories of operators referred to in paragraph 1 ... each operator shall obtain import licences on the basis of the average quantities of bananas that he has sold in the three most recent years for which figures are available.

Those import arrangements were the subject of a dispute settlement procedure within the framework of the World Trade Organisation (WTO). By decision of 25 September 1997, the Dispute Settlement Body of the WTO declared certain aspects of the Community arrangements incompatible with the rules of the WTO.

In order to comply with that decision, the Council adopted Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation No 404/93. (7) The Commission subsequently adopted Regulation (EC) No 2362/98.

Under the new arrangements for banana imports, the allocation of the quota between three different categories of operators was abolished. Regulation No 2362/98 provided that the quotas were to be divided merely between traditional operators and newcomers.

Article 4 of Regulation No 2362/98 reads as follows: 1. Each traditional operator registered in a Member State ... shall receive, for each year and for all the origins listed in Annex I, a single reference quantity based on the quantities of bananas actually imported during the reference period. 2. For imports carried out in 1999 under the tariff quotas or as traditional ACP bananas, the reference period shall be made up of the years 1994, 1995 and 1996.

Article 5(2) and (3) of Regulation No 2362/98 provides: 2. For the purposes of determining their reference quantity, each operator shall send to the competent authority by 1 July each year: (a) a figure for the total quantity of bananas from the origins listed in Annex I actually imported during each of the years making up the reference period; (b) the supporting documents detailed in paragraph 3. 3. Actual imports shall be attested by both of the following: (a) by presenting copies of the import licences used ... by the holder ... in order to release the relevant quantities for free circulation; and (b) by presenting proof of payment of the customs duties due on the day on which customs import formalities were completed. ...

II ─ Facts and procedure before the Court of First Instance

The applicant imported small quantities of bananas into the Community during 1989, 1990 and 1991. It therefore only obtained a small number of import licences for 1993, 1994 and 1995.

Since 1994 the applicant has applied for additional licences from the competent authorities and brought several actions before the German courts.

Thus, by four interim orders issued between 19 May and 28 June 1995 the Finanzgericht Hamburg ordered the Hauptzollamt (Principal Customs Office) Hamburg-Jonas to grant customs clearance for a certain quantity of bananas bought by the appellant in Ecuador. The Finanzgericht Hamburg considered that Regulations Nos 404/93 and (EEC) 478/95 (8) infringed certain of the rules of the General Agreement on Tariffs and Trade (GATT). It therefore decided provisionally to disapply those regulations and to refer four questions to the Court for a preliminary ruling. (9) By virtue of those interim orders the appellant was authorised to import a quantity of 9 860 571 kg of bananas under the tariff quota, without an import licence and on payment of the quota duties of ECU 75 per tonne.

By judgment of 22 August 1995 the Bundesfinanzhof (Federal Finance Court) (Germany) set aside the four orders of the Finanzgericht Hamburg. On the basis of that judgment the Hauptzollamt Hamburg-Jonas, by decisions of 29 August and 1 September 1995, fixed the customs duty to be paid by the appellant at ECU 850 per tonne, that is to say the rate provided for in the case of imports of bananas outside the tariff quota.

The appellant then made fresh applications for interim relief to the Finanzgericht Hamburg. By orders of 22 and 27 September 1995 that court suspended the operation of the decisions of the Hauptzollamt Hamburg-Jonas without requiring a security to be furnished. For the same reasons as those given in its first orders, the Finanzgericht Hamburg once again referred the same four questions to this Court for a preliminary ruling as it had previously. (10)

When its reference quantity was established for 1999 the appellant asked for the quantity of bananas it had imported under the interim orders of the Finanzgericht Hamburg to be taken into account. After consulting the Commission departments, the German authorities refused to grant its request, however.

It was in those circumstances that the appellant, by application lodged at the Registry of the Court of First Instance on 19 February 1999, brought an action under Article 178 and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC). The appellant sought compensation for the loss it suffered as a result of the Commission's intervention with the German authorities in order to exclude from its reference quantity for 1999 several quantities of bananas and, in particular, the quantity which it had been authorised to import under the interim orders of the Finanzgericht Hamburg. (11)

The appellant based its case on the following three pleas: (1) infringement of the GATT, of the General Agreement on Trade in Services (GATS) and the Agreement on Import Licensing Procedures, which are contained in Annex 1 to the WTO Agreement; (2) infringement of the principle of equal treatment, and (3) infringement of the principles of protection of property and legitimate expectations and the principle of proportionality.

III ─ The judgment under appeal

In the context of the second plea, which is the only plea that is relevant in the present case, the appellant contended that reducing its reference quantity by the contested quantity infringed the principle of equal treatment. (12)

It pointed out that by its interim orders the Finanzgericht Hamburg had approved importation of the contested quantity without a licence provided that the normal import duty was paid. The applicant had in fact paid that duty. Under the principle of equal treatment, imports of bananas on the basis of those orders should therefore entail the same rights as imports under import licences.

In reply to those arguments the Commission maintained (13) that the quantities of bananas judicially determined could be allocated as reference quantities provided that the import duties had actually been paid and the imports had actually taken place during the reference period.

In the present case, the appellant did not meet the first condition. Although the customs debt in respect of the contested quantity was established by the Hauptzollamt Hamburg-Jonas, the Finanzgericht Hamburg ordered the suspension of the payment of that debt without stipulating that a security should be provided. In addition, the contested quantity was imported without an import licence and, hence, outside the tariff quota, which meant that the full rate under the common customs tariff applied to it. The Commission concluded that so long as that customs duty remained unpaid it was not possible to take the contested quantity into account in calculating the reference quantity.

In the judgment under appeal the Court of First Instance rejected the appellant's arguments on the following grounds: 88 ... with regard to the applicant's contention that it could have a quantity of bananas determined by an interim order of the Finanzgericht Hamburg taken into account, suffice it to say that the Commission is entitled to require all imports which may be taken into account as reference quantities to be genuine imports. The quantity referred to by the applicant was imported outside the tariff quota and was therefore subject to the full rate under the common customs tariff. The payment of the relevant customs duties was then suspended by the interim order of the Finanzgericht Hamburg. In those circumstances, the applicant cannot ask for that quantity to be taken into account in determining its reference quantity. It is for the applicant to establish that the customs duties in question have actually been paid, which it has failed to do. In that connection, it should be added that the Commission stated at the hearing, and was not contradicted on this point, that it informed the competent German authorities that it would be necessary to take that quantity into account if the abovementioned duties are paid.

Having rejected the appellant's other pleas, the Court of First Instance concluded that the appellant had failed to establish that any unlawful conduct had occurred which would cause the Community to incur non-contractual liability. The Court therefore dismissed the action for damages.

IV ─ The appeal

By application lodged at the Registry of the Court of Justice on 23 May 2001 the appellant brought the present appeal. It is asking the Court to set aside the judgment under appeal in so far as the Court of First Instance rejected its arguments with regard to the contested quantity.

Although the notice of appeal is somewhat unclear, it seems that the appellant bases its appeal on two pleas. The first plea alleges infringement of Article 5(3) of Regulation No 2362/98. The second plea alleges infringement of the case-law of the Court of Justice concerning the power of national courts to grant interim relief in disputes involving Community law.

I shall consider each of those pleas in turn.

A ─ First plea

By its first plea, (14) the appellant maintains that the Court of First Instance infringed Article 5(3) of Regulation No 2362/98. It complains that the Court of First Instance held that in order to be able to include the contested quantity in its reference quantity the appellant must furnish proof that it had paid the customs duties due on imports made outside the tariff quota.

The appellant argues that Article 5(3)(b) of Regulation No 2362/98 requires proof only of payment of the duties due on the day on which customs import formalities were completed. In the present case the duties due on the day on which the contested quantity was imported are the duties established by the Finanzgericht Hamburg, namely quota duties of ECU 75 per tonne. The fact that the Bundesfinanzhof subsequently set aside the orders of the Finanzgericht Hamburg and the fact that the Hauptzollamt Hamburg-Jonas subsequently established the duties due at the rate of ECU 850 per tonne are irrelevant in the light of the wording of Article 5(3)(b) of Regulation No 2362/98. The Court of First Instance should therefore have found that payment of the quota duties was sufficient in order for the contested quantity to be included in the reference quantity.

Like the Commission, I think that that plea is manifestly unfounded. The appellant's argument fails to have regard to the fact that determination of the duties due on the day [of] import may be disputed between the parties concerned. It also fails to apply the principle of the retroactive effect of preliminary rulings of the Court of Justice.

It is common ground that determination of the duties due on the day [of] import may be disputed between the parties concerned. Such disputes may relate to the method of calculating the duties, the interpretation to be given to the Community rule or (as in the present case) the validity of the rule. In such cases it is clear that the exact amount of the customs duties due in respect of the operation cannot be known definitively on the day on which the import formalities are completed. That amount will not be known until a decision is taken having the force of res judicata. That decision will establish in a sure and definitive manner the amount of duties which were due to be paid on the day on which the customs formalities are completed.

It is also not in dispute that, according to case-law, preliminary rulings of the Court of Justice in principle have retroactive effect. As regards preliminary rulings on interpretation, this Court has ruled that the interpretation which it gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be understood from the time of its entry into force. (15) The rule so interpreted is therefore to be applied to legal relationships arising and established before the preliminary ruling, provided that the conditions enabling an action to be brought before the national courts are satisfied. The same principle applies to preliminary rulings on validity. In Case C-228/92 T. Port, (16) the Court expressly held that a judgment of the Court in proceedings for a preliminary ruling declaring a Community act invalid in principle has retroactive effect. This is all the more true where the Court finds that consideration of the questions referred for a preliminary ruling has not disclosed any factor that would affect the validity of the contested measure.

The appellant's argument fails to take account of that principle.

It should be pointed out that in this case the quantity of 9 860 571 kg of bananas imported by the appellant under the orders of the Finanzgericht Hamburg was outside the tariff quota. The only reason for which the appellant was authorised to import it under that quota was that the Finanzgericht Hamburg entertained doubts as to whether Regulations Nos 404/93 and 478/95 were compatible with the GATT rules. The Finanzgericht Hamburg therefore held that the customs duties due in respect of the contested imports should be established at the preferential rate of ECU 75 per tonne and not at the rate of ECU 850 per tonne.

In T. Port, cited above, (17) however, this Court did not uphold the finding of the Finanzgericht Hamburg on that point. In response to the questions referred to it by that court, the Court held that the GATT rules did not apply in that case and so they could not be effectively relied on to preclude the application of Regulations Nos 404/93 and 478/95.

It follows that under the principle of the retroactive effect of preliminary rulings the findings of the Court produce their effects from the day on which the contested quantity is imported. This means that the amount of the duties due on the day on which the contested quantity was imported is ─ and should always have been ─ the rate applying to imports made outside the tariff quota, that is to say, ECU 850 per tonne.

In that regard, the applicant's argument amounts to a contention that the effects of preliminary rulings of the Court of Justice may be restricted by interim measures ordered by a national court in proceedings for interim relief. That argument is manifestly contrary to case-law since the Court considers that it alone has jurisdiction to restrict the temporal effects of preliminary rulings. (18) As the Commission has stated, (19) the appellant's argument amounts to a serious attack on the principles of the primacy and uniform application of Community law.

In those circumstances, I propose the Court should reject the first plea as manifestly unfounded.

B ─ Second plea

By its second plea, (20) the appellant contends that the Court of First Instance failed to have regard to the case-law regarding the power of national courts to grant interim relief in cases concerning Community law.

The appellant complains that the Court of First Instance held that the contested quantity was imported outside the tariff quota. It argues that in its interim orders the Finanzgericht Hamburg had expressly authorised those imports within the quota. According to the appellant the Court of First Instance was required to respect the decision by the Finanzgericht Hamburg. It points out that the case-law of the Court of Justice authorises national courts provisionally to disapply a Community measure. The appellant adds that the provisional legal protection conferred on individuals would be reduced to nothing if the decision of the Finanzgericht Hamburg could be called into question by the Court of First Instance.

Like the Commission, I think that that plea is manifestly unfounded.

In Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest (21) and Atlanta Fruchthandelsgesellschaft and Others I, (22) this Court held that national courts had the power to disapply provisionally a Community regulation the validity of which is contested. National courts may order suspension of the enforcement of a national administrative measure adopted on the basis of such a regulation or order interim measures to regulate the legal positions or relationships at issue concerning a national administrative measure based on such a Community regulation. The Court, however, has made the exercise of that power subject to four conditions, all of which must be met. According to the judgments cited above, (23) suspension of enforcement or other interim relief may be granted by a national court only:

─ if that court entertains serious doubts as to the validity of the Community act and, if the validity of the contested act is not already in issue before the Court of Justice, itself refers the question to the Court of Justice;

─ if there is urgency, in that suspension of enforcement or the other interim relief is necessary in order to avoid serious and irreparable damage being caused to the party seeking it;

─ if the court takes due account of the Community interest; and

─ if, in its assessment of all those conditions, the national court respects decisions of the Court of Justice or the Court of First Instance ruling on the lawfulness of the regulation, or an interim order granting similar interim relief at Community level.

With regard to the third condition, the Court has held that the national court is under an obligation to take account of the interest of the Community that the contested regulation should not be set aside without proper guarantees. (24) That means that if the grant of interim relief is liable to entail a financial risk for the Community the national court must also require the applicant to provide adequate guarantees, such as the deposit of money or other security.

In the present case, it is not in dispute that the Finanzgericht Hamburg failed to comply with that third condition. By its interim orders it authorised the appellant to import the contested quantity under the tariff quota without requiring a security to be lodged. The national court therefore exempted the appellant from payment of the customs duties due under the Community legislation without ensuring that the Community's financial interests were protected by ordering the provision of a security or some other equivalent measure. (25)

In those circumstances, the appellant cannot validly rely on the rights allegedly conferred by the orders of the Finanzgericht Hamburg. (26) Since those orders do not comply with the conditions laid down by the case-law, they cannot in any way lead to the contested quantity being included in the appellant's reference quantity.

I therefore propose that the Court should reject the second plea as being manifestly unfounded.

V ─ Conclusion

In the light of the above considerations, I propose that the Court should dismiss the appeal as being manifestly unfounded and order T. Port GmbH & Co. KG to pay the costs of both sets of proceedings.

1 – Original language: French.

2 – [2001] ECR II-981 (the judgment under appeal).

3 – [1998] ECR I-1023.

4 – OJ 1993 L 47, p. 1.

5 – Regulation of 28 October 1998 laying down detailed rules for the implementation of Council Regulation No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32).

6 – See judgment under appeal (paragraphs 1 to 11).

7 – OJ 1998 L 210, p. 28.

8 – Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13).

9 – Case C-182/95 T. Port, removed from the register by order of 12 March 2001 (not published in the European Court Reports).

10 – Joined Cases C-364/95 and C-365/95 T. Port, cited above.

11 – Otherwise referred to as the contested quantity.

12 – Judgment under appeal (paragraphs 70 to 72).

13 – Ibid. (paragraphs 78 to 80).

14 – Appeal (paragraph 2).

15 – [2001] ECR II-981 (the judgment under appeal).

16 – [1998] ECR I-1023.

17 – OJ 1993 L 47, p. 1.

18 – Regulation of 28 October 1998 laying down detailed rules for the implementation of Council Regulation No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32).

19 – See judgment under appeal (paragraphs 1 to 11).

20 – OJ 1998 L 210, p. 28.

21 – Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13).

22 – Case C-182/95 T. Port, removed from the register by order of 12 March 2001 (not published in the European Court Reports).

23 – Joined Cases C-364/95 and C-365/95 T. Port, cited above.

24 – Otherwise referred to as the contested quantity.

25 – Judgment under appeal (paragraphs 70 to 72).

26 – Ibid. (paragraphs 78 to 80).

27 – Appeal (paragraph 2).

28 – [2001] ECR II-981 (the judgment under appeal).

29 – [1998] ECR I-1023.

30 – OJ 1993 L 47, p. 1.

31 – Regulation of 28 October 1998 laying down detailed rules for the implementation of Council Regulation No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32).

32 – See judgment under appeal (paragraphs 1 to 11).

33 – OJ 1998 L 210, p. 28.

34 – Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13).

35 – Case C-182/95 T. Port, removed from the register by order of 12 March 2001 (not published in the European Court Reports).

36 – Joined Cases C-364/95 and C-365/95 T. Port, cited above.

37 – Otherwise referred to as the contested quantity.

38 – Judgment under appeal (paragraphs 70 to 72).

39 – Ibid. (paragraphs 78 to 80).

40 – Appeal (paragraph 2).

41 – [2001] ECR II-981 (the judgment under appeal).

42 – [1998] ECR I-1023.

43 – OJ 1993 L 47, p. 1.

44 – Regulation of 28 October 1998 laying down detailed rules for the implementation of Council Regulation No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32).

45 – See judgment under appeal (paragraphs 1 to 11).

46 – OJ 1998 L 210, p. 28.

47 – Commission Regulation of 1 March 1995 on additional rules for the application of Council Regulation (EEC) No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13).

48 – Case C-182/95 T. Port, removed from the register by order of 12 March 2001 (not published in the European Court Reports).

49 – Joined Cases C-364/95 and C-365/95 T. Port, cited above.

50 – Otherwise referred to as the contested quantity.

51 – Judgment under appeal (paragraphs 70 to 72).

52 – Ibid. (paragraphs 78 to 80).

See, for example, Joined Cases 66/79, 127/79 and 128/79 <i>Salumi and Others</i> [1980] ECR 1237, paragraphs 9 and 10, and Case 826/79 <i>Mireco</i> [1980] ECR 2559, paragraphs 7 and 8.

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[1994] ECR I-1445, paragraph 17.

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Points 58 to 67.

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See, as an example of established case-law, <i>Mireco</i>, cited above, paragraph 9.

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Defence, paragraph 12.

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Appeal, paragraph 3.

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Joined Cases C-143/88 and C-92/89 [1991] ECR I-415, paragraphs 14 to 21.

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Case C-465/93 [1995] ECR I-3761, paragraphs 19 to 30.

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One might wonder whether that conclusion does not already result merely from the fact that the orders of the Finanzgericht Hamburg were set aside by the Bundesfinanzhof.